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Wilner: Talking Dog Interview

May 23, 2006The Talking DogBlog Interview with Thomas Wilner

Thomas
Wilner is a partner in the Washington, D.C. office of the law firm of Shearman
& Sterling. Mr. Wilner represents twelve Kuwaiti nationals who are, or have
been, detained by the United States military at Guantanamo Bay, Cuba. On May
15, 2006, I had the privilege of interviewing Mr. Wilner, by telephone. My
interview notes, as corrected where appropriate by Mr. Wilner, are below.

The Talking Dog: In my own case, the
answer was "across the street from the WTC"; the answers I get are
always interesting... the first question is "Where were you on September
11th"?

Thomas Wilner: Everyone indeed has
an interesting answer. In my case, on the night of September 10th, I was on an
Aeromexico flight to Mexico City, and was then supposed to travel on to
Culiacan on the West Coast of Mexico, a "vegetable capital", where I
was to meet with a number of Mexican clients and U.S. Dept. of Commerce
representatives. The flight was 11 hours late. Eventually, I got to Culiacan,
and met my Mexican clients, who told me "the towers were blown up".
On September 11th and 12th, I was in Culiacan with Mexican clients and Commerce
officials, and we watched the 9-11 events on TV. There was a great deal of
fellowship-- the Mexicans were appalled and sympathetic. At that time, of
course, no planes were flying in the United States, so I got a flight to
Tijuana, walked over the border into San Diego, and waited two days before I
could get a flight down to Washington. My memories are about how sympathetic
the Mexicans were...

The Talking Dog: Do you find it a
tad ironic that the President will be talking about moving National Guard
troops to that border tonight?

Thomas Wilner: Ironic indeed...

The Talking Dog: I understand that
you were among the first (if not the first) attorney to bring a habeas corpus
case on behalf of a Guantanamo detainee, in your case, twelve Kuwaiti nationals
in a case called "Al-Odah v. United States". Can you tell me the
current procedural status of that case... am I correct it is fully briefed and
argued and awaiting decision by the D.C. Circuit Court of Appeals?

Thomas Wilner: At the end of
February or March, 2002, the Rasul case was filed. By May 1st, Al-Odah was
filed. The Center for Constitutional Rights filed Rasul, as a straight habeas
corpus case. We styled our case somewhat differently, alleging different civil
causes of action. Those were the original two cases that were decided by the
Supreme Court. The Rasul guys are now out, except for David Hicks, who is one
of the few guys charged before a military commission, and he is really now part
of the Hamdan case challenging the validity of the military commission. In June
of 2004, the Supreme Court ruled in our favor, finding that the federal courts
had jurisdiction to hear complaints by detainees at Guantanamo. The first thing
the government did after that decision was insist that the detainees were not
entitled to lawyers, or that if they were, the lawyers could be eavesdropped on
"for national security" purposes. Judge Kollar-Kotelly of the
District Court in Washington, D.C. held that the detainees had an absolute
right to unmonitored communications with their lawyers. The government then
moved to dismiss the cases, arguing that, even if the detainees could go to
court, they had no substantive rights that could be vindicated in court. By
that time, thirteen cases had been filed. Judge Joyce Hens Green ruled in
eleven of those cases, finding that the detainees had the constitutional right
to due process and had been denied that right. Judge Richard Leon ruled in the
two other cases and found the detainees had no rights. Those two decisions are
now on appeal to the D.C. Circuit Court. Even Judge Green bought in, to some
extent, to the argument that we had to show that detainees had some
constitutional interest or constitutional rights as a precursor to get habeas
relief. This is not the case: habeas simply compels the government to show a
reasonable legal and factual basis for the detentions, and indeed, habeas
pre-dates our Constitution. We believe we won on the merits at oral argument in
September of 2005, and then the Government got Senator Graham to introduce and
help pass what became the Graham Levin Amendment. The Court of Appeals sua
sponte directed supplemental briefings on Graham Levin issues, which we have
filed. These issues were also raised in Hamdan. Though we had asked the Court
of Appeals to hold off on a decision until the Supreme Court decided Hamdan, as
Hamdan would almost certainly be instructive, they wouldn't hold off. In any
event, we first submitted a 15 page brief, then a 60 page brief. The appeal was
then argued on March 22nd. The Court of Appeals case is fully submitted, and in
the end, will likely be decided after Hamdan anyway (which should be decided by
June).

The Talking Dog: Of your Kuwaiti
national clients, I understand that a number have been released, and they have
some legal issues pending back in Kuwait?

Thomas Wilner: Six have been
released to Kuwait. Kuwait will not hold anyone more than a limited amount of
time without charging them under their own laws. They can be prosecuted there
more easily than here, but there still has to be some evidence worthy of
prosecution. And they cannot be convicted without a fair trial. All are on
bail, awaiting trial, and based on what we know, we would expect them all to be
acquitted. By the way, there is no rhyme or reason as to why those six are
released and the other six are still held. It's supposedly based on classified
evidence, but again, there seems no rhyme or reason. For example, one still
held at Guanatnamo, Abdullah Al Kandari, is a great guy, and a member of
Kuwait's national volleyball team... he is held because supposedly an alias of
his name appeared on a hard drive two years after he was detained! He has no
alias... He was also accused of wearing a Casio watch which they say terrorists
wore.... though such a watch was also worn by the military's own Muslim
chaplain, Mr. Yee. And Omar Amin was alleged to be in Bosnia... well, he was in
Bosnia, helping out as head of the Bosnian national relief agency. [Editing
note: Since the interview, it appears that at least five Kuwaitis previously
held at Guantanamo and released to Kuwait have been acquitted by a Kuwaiti
court.]

The Talking Dog: I also understand
that you were among the first (if not the first) attorney to travel to
Guantanamo Bay to meet with your clients. Can you tell me your impressions-- or
Guantanamo Bay, what you observed, and give me a brief impression of some of
your clients (their names, something about them or their cases)? Am I correct
that not one of them (1) was picked up by American forces "on the
battlefield", or (2) has been charged with a war crime? How have they held
up since you first met them?

Thomas Wilner: You are correct that
none was picked up by the United States, or on a "battlefield" and
none has been charged. Our best information is that all were turned over for
bounties. My general impressions are laid out in the Los Angeles Times piece. The
place is Kafkaesque. It is quite dry... it could be beautiful. The military
escorts are very nice, very polite and friendly... It seems incongruous to have
a place so evil, such an affront to American principles, to be introduced by
such courteous soldiers, disguising just how evil it is.

The Talking Dog: I understand that
there have been complaints that the discipline system at Guantanamo involves
progressive removal of religious items for various infractions, ranging from
prayer beads and prayer mats to pants (to prevent prayer while being in the
immodest position of not being covered head to toe), though a Koran is left
even with the most recalcitrant prisoners... Are you aware of these complaints,
and do your clients have these complaints?

Thomas Wilner: The complaints I am
aware of concern comfort items, not religious items per se, but things like
blankets, toothbrushes, long pants...what I would call comfort items. I don't
know about the allegations of religious items as such, certainly some detainees
have complained that removal of pants is intended as punishment by interfering
with prayer... Certainly, there have been reports associated with the abuse of
the Koran... as far as I know, those incidents (that is, abuse of the Koran)
have stopped. Though there have certainly been what I'll call
"freewheeling interrogations", which may have involved this kind of
thing...

The Talking Dog: I understand that
in some cases, it has been alleged that detainees have been encouraged not to
cooperate with their own attorneys, in particular when their attorneys are
Jewish. Can you comment on this?

Thomas Wilner: That issue came up
with me. Interestingly, it didn't get that much play. But my clients were told
by interrogators not to trust their lawyer "because he's a Jew" ”. An
interrogator told him "why would you trust him-- he's a Jew from a large
Jewish law firm-- that represents the State of Israel--"

The Talking Dog: Hey, you just
picked up another client!

Thomas Wilner: Anyway, this was
printed by Nick Lewis in the Times... “Don’t trust him, he's a Jew,” but it
didn't seem to get that much traction. But one of my clients, Fayez al Kandari,
told a female interrogator, code named "Megan" "I don't care who
or what he is-- there are good people in every religion." That was his
answer, from the depths of Guantanamo.

The Talking Dog: Are any of your
clients still on hunger strike? How many were on hunger strike, and what is
their current status?

Thomas Wilner: None are still on
hunger strike, as alluded to in the L.A. Times piece. I am going down next
Sunday (May 21)... we go down regularly, around every month, as it’s the only
way to see how our clients are doing. They have been forced off the hunger
strike as I wrote in the L.A. Times, by the methods described, including
force-feeding in the special chair.

The Talking Dog: Others have told me
that at one time, the medical personnel were comparable to veterinarians, but
they brought in serious professionals when the hunger strike began. Can you
comment on that? Also, can you comment on the allegation that the hunger strike
is alleged by the government to be a tactic per "the Manchester
document"?

Thomas Wilner: Well, Fawzi (al
Odah)'s impression was that they did indeed bring in better trained people
later on in the hunger strike. He went on hunger strike last August... he lost
a great deal of weight, and after some forced measures, he regained some. He
does say, they changed the medical team at some point. He notes that he
observed the chief doctor, when he was finally forced off the hunger strike,
crying. As to the Government's calling the hunger strike an Al Qaeda tactic,
were Gandhi's, or Bobby Sands' hunger strikes Al Qaeda tactics? This just gets
too ridiculous for words at some point.

The Talking Dog: Let me turn to
Fawzi al-Odah and the interview he gave to the BBC, via you, which is the only
interview of a detainee while still at Guantanamo of which I am aware. I heard
and read remarks critical of your role in that interview from a State
Department spokesperson. I should point out that I heard an immediate reference
to "the Manchester Document" indicating that all supposed Al Qaeda
members are trained to complain about their detention conditions... I'd like
you to comment on that, and if you can tell me if there have been any
repercussions of that interview, such as a change in treatment to Al-Odah or
your other clients, or if you have had other repercussions from the government
of any kind?

Thomas Wilner: There have been no
repercussions to Al Odah. I should point out that we have no knowledge of
conditions down there until we get down there,; there is no access or other
communication with the outside world, so we do try to go down once a month. As
to me, there have been some consequences, as the government tried to prevent my
access to my clients. At one time, the government refused to let me down after
the interview, insisting that I somehow violated rules by doing it. Of course,
the government has a system of reviewing notes, and if the information in them
is not classified, the notes can be disclosed publicly. The government claimed
I improperly brought something in-- to wit, the questions. But in this case, I
simply added interview questions to my legal outline. So I did absolutely
nothing wrong. The government backed down.

In any event, we negotiated, and the
agreement now is that, before I conduct any such interview in the future, I
notify the government so it has an opportunity to seek a court order trying to
stop me from doing so.

The Talking Dog: Had anyone besides
the BBC ever asked you to do anything like the Al-Odah interview? Do you know
if the BBC asked other attorneys to do it, or if other news organizations did?

Thomas Wilner: As far as I know
that's the first time anyone has done it. John Manel of BBC came up with the
idea. As far as I know, no one else has done anything like it.

The Talking Dog: One thing that
interests me about Guantanamo is how little it seems to interest other
Americans in general, or the media here; by my limited observation, there is
far more interest in it in the Middle East (where most of the detainees are
from) and in Europe. In fact, with limited exceptions (Jane Mayer of the New
Yorker, Charlie Savage of the Boston Globe, Murray Waas of National Journal,
maybe NPR, the Washington Post and New York Times once in a while) there just
isn't that much interest here. Do you agree with that assessment? To what
extent do you believe the government's decision to "offshore"
Guantanamo supposedly "beyond the reach of law" has affected that or
contributed to it, or do you not think it matters where the detainees are
venued? Are Americans just too self-absorbed and happy to think "the
President is protecting me from bad people" to even care about any of
this?

Thomas Wilner: When at some future
time we look back at the history of Guantanamo, this will be just about the
most interesting question. Why didn't it play? Why weren't more people
interested? As you know, there was a great National Journal piece on
Guantanamo. And the Seton Hall reports. But the U.S. public is continually told
"these are dangerous people" and stops thinking about it. Two and a
half, three years ago I talked to a social scientist at the University of
Chicago about this, who concluded that overall psychological conditions are
kind of like during the rise of Nazism... people are afraid, and don't know
what to do.... They suspect some things are being done that aren’t right, but
think maybe they’re necessary ... and they don’t want to know about it. For
example, 60 Minutes was all set to produce a Guantanamo piece in 2002, but
killed it as "too political". The late Peter Jennings did a great
piece on Guantanamo in 2004... but they buried it at 10 pm on a Friday night...

On my own reflections, as a Jewish
boy growing up in this country, we like to think that things like this don't
happen, we have too many checks and balances. But all the checks let us down.
As David Cole has said, the detainees at Guantanamo have no domestic
constituency.

The Talking Dog: Let me ask you this
on the psychology. By my observation in New York, where I live, and which, if
God forbid we are attacked again, will be the most likely target, by and large
we have come to realize that as dangerous as terrorism might be, our freedoms
are more precious, and we have to keep things in perspective. Can you comment
on that?

Thomas Wilner: Certainly, I have
noticed a similar reaction in Washington. New York and Washington had the
immediacy-- and there was certainly great fear for perhaps a year or so...
remember the anthrax attacks here? And certainly, Washington, like New York,
would be the likeliest of terrorist targets. But yes, I have seen a similar
reaction.

This Administration has traded on
fear and hysteria. And the Democratic party has been too afraid to stand up to
that.

The Talking Dog: I've read
descriptions of you as "an angry man" about the injustice of all
this... Am I correct that this has been one of the most frustrating experiences
of your legal career? Do you see any light at the end of the tunnel here,
either from the outcome of the D.C. Circuit appeal(s), the Supreme Court's
upcoming decision in Hamdan, the President's growing unpopularity, publicity
over the Uighurs, general political pressure or any other cause?

Thomas Wilner: The Administration
keeps arguing that "we are at war"... rather than deal with
substance, it stonewalls. The Graham Levin Act essentially suspended habeas
corpus and relieved the government of the need to justify its detentions in
court... the Administration can't do it. It has no legal basis.

In time, the hysteria will die out,
and then this can, we hope, ultimately be resolved.

The Talking Dog: Are there any
questions I didn't ask you that I should have, or is there anything else either
my readers or the American public need to know?

Thomas Wilner: Well, I think you did
a hell of a job--

The Talking Dog: Me and Browny, I
suppose...

Thomas Wilner: Yes... Browny did a
hell of a job, too! In all seriousness, how can people look at how the
government reacted after New Orleans was hit by Katrina, and think that this
government is competent to handle something as complex and difficult as the war
on terror?

As the Denbeauxs' Seton Hall report
tells us, most people held at Guantanamo are not even accused of terrorism.
While some complain of the security conditions Moussaoui will now be sent to--
23 hour a day lockdown and all-- he was convicted! My clients haven't even been
charged! And yet while two are at Camp 4 with some human interaction, the
others are in isolation for all but a few minutes of exercise a week, deprived
of human conduct... and they are not even CHARGED.

The Talking Dog: Mr. Wilner, I'm
sure I join all of my readers in thanking you for that fascinating interview.